Why Official Secrets Act needs a review

October 01, 2007 16:41 IST

Secrets are an essential tool in the hands of a government to protect national security and national interests. Even corporate houses have to have business and commercial secrets if they have to be competitive in the world of business. Without secrets, there will be anarchy and confusion. National security can be endangered and national interests can be severely damaged. Corporate houses may be driven into bankruptcy. That is why all governments -- whether democratic or authoritarian -- have their laws relating to official secrets. That is also why all corporate houses have their internal regulations regarding the confidentiality of certain categories of information. The over-demonisation of the Indian State by certain critics for having on its statute book a law relating to official secrets is unwarranted and will be counter-productive.

Transparency and accountability are essential tools at the disposal of public opinion in order to ensure that the requirements of secrecy are not over-stated and over-used in order to mislead the people and prevent them from exercising their role as citizens with the right to hold their political leaders and public servants accountable for their sins of commission and omission.

How to match the justified need for secrecy with the equally justified need for transparency and accountability? That is a question which has been engaging the attention of policy-makers and non-governmental intellectuals all over the world ever since the enquiries into the Watergate scandal in the US in the early 1970s brought out shocking evidence of the misuse of the intelligence and investigative agencies by then President Richard Nixon and his staff in order to prevent the truth from coming out.

This debate on the theme of secrecy vs transparency and accountability spread to other countries too as public opinion in those countries discovered their own versions of Watergate. During the war with Argentina over the Falklands in 1982, a British ship sank a ship of the Argentinian Navy called "General Belgrano" causing a number of Argentine fatalities. In a statement in the House of Commons, the government of then prime minister Margaret Thatcher claimed that the ship had to be sunk because it posed a threat to the British ship and its personnel.

An internal document, however, showed that the government had told a lie to the House of Commons and the people. The Argentine ship was actually fleeing the battle when it was sunk. A public servant (Clive Ponting), who had access to this document which was marked top secret, leaked it out to the media in order to show that the government had deliberately told a lie. He was arrested and prosecuted under the Official Secrets Act of 1911. The judge agreed with the prosecution that the fact that the accused was merely exposing a lie uttered by the government could not condone his violation of the Act. However, the jury did not agree with this and acquitted him.

This case led to an interesting debate on the question as to whether there could be circumstances where a government would be justified in telling a lie to the public. There could be circumstances in which a government might have to tell a lie in public in the national interest and in the interest of the State. If the British government had told the truth that its naval ship had committed a mistake in sinking the Argentine ship, it might have made the British State liable for action by the Argentine State before the International Court of Justice.

Was the lie uttered in the national interest or was it uttered in partisan political interests? That is the deciding question. If the lie was in partisan political interests, there was no justification for it and a public servant exposing it should not be held to have violated the Official Secrets Act.

The debate in the UK on the arbitrary manner in which the Official Secrets Act of 1911 was allegedly being misused to cover up the sins of commission and omission of the government led to an amendment of the Act in 1989 to make it difficult for governments to indulge in a wrongful prosecution of persons under the pretext of violations of the Act. Despite this, there is a widespread perception that governments continue to misuse even the amended Act of 1989 in order to prevent disclosures of their wrong-doing.

Max Weber's 1922 paper on Economy & Society (Berkeley: University of California Press 1979) said: 'In so far as it can, it (the bureaucracy) hides its knowledge and action from criticism... The concept of the 'official secret' is the specific invention of the bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude... In facing a parliament, the bureaucracy, out of a sure power instinct, fights every attempt of the parliament to gain knowledge by means of its own experts or interest groups. Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament -- at least in so far as ignorance somehow agrees with the bureaucracy's interests.'

This was as much true when it was written as it is today. While paying homage to the principles of transparency and accountability, all governments -- democratic and authoritarian -- want the public to know as little as possible about their sins of commission and omission. This attitude has not changed substantially even after the inquiries into the Watergate scandal in the US and into the Falklands War in the UK.

This was evident before, during and after the US-led invasion of Iraq in 2003 when the governments of President George Bush in the US and Prime Minister Tony Blair in the UK frantically tried to hush up the truth regarding their allegations of the presence of weapons of mass destruction in Iraq and the alleged links of Saddam Hussein, the then President of Iraq, with Al Qaeda. There were internal documents in the intelligence communities of the US and the UK, which showed that these pretexts for the invasion were nothing but a pack of lies, but any government servant, who told the media about it, was sought to be harassed and became the victim of a witch-hunt. There was the glaring case of a senior aide to Vice-President Dick Cheney exposing the identity of a woman officer of the Central Intelligence Agency because her husband had discounted the allegations about Iraq's quest for WMD.

There was a qualitative difference between the action of the Margaret Thatcher government in telling a lie about the sinking of an Argentine ship and the actions of the Bush and Blair administrations in telling lies about Iraq. The Thatcher government told a lie in order to protect the honour of the British Navy. The Bush and the Blair Administrations told lies in order to fraudulently obtain the approval of the legislature and the public for their decision to invade and occupy Iraq.

There are two kinds of disclosures -- disclosures of genuine secrets and disclosures of wrong-doings inside intelligence and security agencies such as corruption, nepotism, financial irregularities etc. Can disclosures of wrong-doings be also projected as violation of laws relating to official secrets just because the concerned papers in an intelligence or security agency relating to those wrong-doings were marked secret or top secret? It has been accepted in the West over the years that a disclosure embarrassing to an intelligence or security agency cannot be projected as a disclosure damaging public or national interests to warrant arrest and prosecution under the Official Secrets Act.

A British court made it clear in a case of 2000 that 'inconvenient or embarrassing revelations, whether for the security services, or for public authorities, should not be suppressed. Legal proceedings directed towards the seizure of the working papers of an individual journalist, or the premises of a newspaper or television programme publishing his or her reports, or threat of such proceedings, tend to inhibit discussion.'

It has come to be accepted in many countries that a media or a publishing house cannot be prosecuted for publishing an official secret unless it can be proved that it obtained that secret through criminal means such as stealing a document. Despite this, instances of harassing prosecutions for exposing wrong-doings continue in many countries.

In November,1997, the Helsinki Foundation For Human Rights and the Centre For National Security Studies of Washington DC brought out a joint study on the subject, 'Security services in a constitutional democracy'. Their report pointed out that societies, which over-emphasised the needs of secrecy at the expense of the needs of transparency and accountability such as the Communist States of East Europe ultimately collapsed and perished. It said inter alia: 'National security is important for the prosperity of any society, but in constitutional democracies, national security is a means to make possible the enjoyment of public peace and individual rights.

'Some of the most serious violations of human rights and fundamental freedoms are justified by states as necessary to protect national security. Indeed, the security services played a central role in the former Communist regimes; their activities were conducted in secret, they were not held publicly accountable and they were at least partly responsible for the economic, social, and moral crises in Russia and the Eastern European countries. Even in democratic societies, the security services have often violated individual rights.'

The report suggested, inter alia, the following principles and practices for adoption by democratic societies:

Principle 13: Secret services must be authorized by statute, which statute shall be public. Each secret agency shall be established by statute, which should specify the limits of the agency's powers, its methods of operation and the means by which it will be held accountable. The fact of existence of every security agency shall be publicly disclosed and the head of each agency shall be publicly identified. Each operation or activity by a security agency shall be authorised by a specific individual, whose name shall appear on a written authorisation. There must be clear written rules governing the agencies' activities and the responsibilities of the heads of each agency.

While the identities of employees, other than the heads of the agencies, usually may be kept secret from the public, the internal records of the agencies shall show who authorized every activity.

Principle 14: The role of secret services must be openly decided. Legislative representatives and other interested citizens shall have the right to participate in decision-making on the issues of what should be the tasks and objectives of the services and what are the legitimate means which may be employed by them. While the identity or details of certain sources and methods may be kept secret, the objectives and methods of the secret services must be publicly decided.

Principle 16: Right of access to information about security services. No state agency may be exempted from public accountability because doing so would close the door on public debate about how the national security should be protected. Secret State institutions pose grave dangers to constitutional democracies because accountability requires the greatest possible degree of openness. At the same time, individual nations face real threats and state actions necessary to protect the national security must sometimes be carried out in secret in order to be effective. Thus, there can be room in a democracy for state institutions which operate to some degree in secret in order to protect and advance specific national security objectives. In order for such secret services not to threaten civil society, they must be subject to the rule of law and public accountability, as are all other state institutions.

Principle 19: Narrow designation of official secrets. A state may not categorically designate all information related to national security as official secrets, but shall designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest. Any classification system shall permit classification only of publicly and specifically enumerated categories of information whose disclosure would cause identifiable harm to the national security which is not outweighed by the public interest in knowing the information. A state may not designate information as official secret, unless the information is exclusively in the possession or control of the state at the time of designation. There shall be clear notice, such as written markings, that information is classified.

Principle 20: Public interest in disclosure. Public disclosure of official secrets by people who are not state employees may not be made a criminal act. The designation of official secrets shall meet the requirements outlined above. A state, of course, may punish espionage, the intentional direct transmission of official secrets to foreign powers.

There is a distinction between betrayal, leaking and disclosure of official secrets. A spy working for a foreign intelligence agency betrays official secrets to that agency. There is no excuse under the law for his or her actions. The law provides for severe penalty in such cases.

Leaking refers to the disclosure of official secrets by a serving public servant to the legislature, media or public or individuals of his own country and not to a foreign agency. Certain categories of leaking result in severe penalties against the public servant. For example, an employee of the government leaking taxation proposals to business houses before the proposals are publicly announced.

Certain categories of leaking of information regarding wrong-doing by the government come under the definition of whistle-blowing. A whistle-blower is entitled to the protection of the law if he can prove that he had drawn the attention of higher authorities to the wrong-doing and that he was compelled to go public because the higher authorities had ignored his wake-up calls. If he goes directly public without first alerting his higher authorities, he is not entitled to protection.

A retired public servant discloses official secrets, of which he had direct or indirect knowledge while he was in service. He does so in an article or a book or during public discussions. To assess his liability for action, the answers to the following questions are taken into consideration: Is the information disclosed of current sensitivity or of historical value only? Is the information disclosed likely to hamper the conduct of war against another country? Is it likely to help other States in their conduct of war against the country to which he belongs? Is the information likely to endanger any on-going human or technical intelligence operation? Is the information disclosed likely to help terrorist or other criminal organisations, which pose a threat a national security? Has he disclosed the identity of a serving intelligence officer other than the No.1 and No.2 of the agency, which may pose a threat to his physical security? Is the information disclosed likely to hamper the performance of the agencies responsible for protecting the head of state and government and other State-protected personalities?

It has been well-recognised in many countries that a well-informed public debate on the functioning of intelligence agencies would be facilitated by the insights and analysis of retired intelligence officers of their experience as intelligence professionals. How to facilitate the flow of their inputs to the public without damaging public interests? Many measures have been introduced for this purpose such as periodic declassification of State secrets, which no longer have current sensitivity and are of historic value only and laying down a procedure to enable the public to benefit from their experience and inputs etc.

There has been no well-informed public debate in India on the theme of Secrecy vs Transparency and Accountability. Like all other Commonwealth countries, India too inherited its Official Secrets Act from the colonial British power. While the UK and many other Commonwealth Countries have revised and updated their Official Secrets Act keeping in view the requirements of transparency and accountability, India and Pakistan are among the few members of the Commonwealth not to have done so. When he was the prime minister in 1989-90, V P Singh did initiate an examination of questions relating to secrecy, accountability and transparency, but his subsequent political difficulties came in the way of this examination being taken to its logical conclusion. It is time to undertake once again this exercise.

(The writer is Additional Secretary (retired), Cabinet Secretariat, Government of India)